States of Nature

In their long-standing campaign against environmental protections,
American conservatives have taken a kitchen sink approach: First
they exalted states' rights and attacked the Environmental
Protection Agency; later, they reversed course, attacking states'
rights and exalting the EPA. The only consistent objective was to
thwart regulation, and the only question was which strategy would
be most effective in achieving that goal.But their political opportunism may soon come to haunt them. By
abandoning their strict states'-rights principles for a broad view
of the EPA's authority, conservatives have boxed themselves into a
corner. If Congress and the White House are in a more environmental
mood after November, conservative anti- environmentalists may find
that they have laid the legal groundwork for their ultimate
defeat.
The debate among conservatives over the best strategy for
pro-business environmental policies has been raging for three
decades. During the Reagan and first Bush administrations, the
states'-rights strategy initially prevailed. In a series of legal
challenges, conservatives embraced a pre-New Deal vision of
Congress's power to regulate the environment. They insisted that the
Clean Air Act, which instructs the EPA to "protect the public
health" by regulating ozone and particulate matter, was an
unconstitutional delegation of regulatory authority. In a federal
appellate opinion in 1999, Judge Douglas Ginsburg of the U.S. Court
of Appeals in D.C. embraced this radical argument. (He was the same
judge who had called for the resurrection of the "Constitution in
Exile"-- a reference to judicial limitations on federal authority
that had been dormant since the 1930s and that would have called
the EPA itself into question.) But, in 2001, in a unanimous opinion
written by Justice Antonin Scalia, the Supreme Court disagreed. (In
a separate concurrence, only Clarence Thomas indicated that he
would be amenable to similarly radical arguments in the future.)
Scalia's rejection of the states'-rights argument didn't mean he was
sympathetic to environmental regulations; it meant he was
intellectually flexible about how to attack them. As early as 1982,
Scalia, then teaching at the University of Chicago, had urged
conservatives not to be blinded by their nostalgic devotion to
states' rights and instead to fight a "two-front war" against
meddlesome regulations at the state and federal levels. In defense
of "market freedom," he said, conservatives should oppose
regulation by the federal government, but they should have no
compunction about supporting broad federal authority to block
regulations by state governments, according to a recent article by
Simon Lazarus and Harper Jean Tobin in The American Prospect.
In the current Bush administration, conservatives answered Scalia's
call. Thwarted in their efforts to attack the EPA in the name of
states' rights, they committed the EPA to an anti-regulatory
agenda, and then attacked any states that tried to pass broader
environmental protections than the now-complaisant federal agency.
The Bush administration tried to do as little as possible on global
warming and was alarmed when California, using a special power under
the Clean Air Act, adopted more rigorous emission standards for
cars than the federal government was willing to adopt. For the
first time since the Clean Air Act was passed in 1970, the Bush
administration last December refused to grant California a waiver
allowing the state to set its own standards for global warming. The
EPA's own legal staff warned that the denial of the waiver was
illegal.
Last April, in the 5-4 Massachusetts v. EPA decision, the Supreme
Court agreed, holding that the EPA had acted capriciously when it
refused to regulate greenhouse gases without adequately justifying
its decision. Justice John Paul Stevens's opinion for the Court,
joined by Justice Anthony Kennedy and the three liberals, was full
of rhetoric about the importance of states' rights and federalism,
noting that states like Massachusetts played a crucial role in
challenging the federal government's failure to follow the clear
mandates of the law. Scalia's dissent, joined by Thomas, Samuel
Alito, and John Roberts, struck a much more nationalistic note,
arguing that the Court owed deference to the "reasoned judgment" of
the EPA. (A year after the decision, the foot- dragging EPA has
still failed to make the finding the Court required, leading
congressional Democrats to threaten a subpoena.)
The fact that pro-business conservatives, on the Court and in the
Bush administration, have abandoned their Barry Goldwater
states'-rights rhetoric for a broad vision of executive power is
not a historical anomaly. On the contrary, as Professor Roderick
Hills of New York University recently argued on prawfsblog, the
Republican Party, from its founding in 1856 through the Eisenhower
presidency, "was built on the foundation of the nationalistic and
elitist judicial power in the service of business." During the
Gilded Age, Hills notes, the Republican Supreme Court held that
"the central purpose of the courts and Congress was to suppress
interference with a national market by juries, trade unions,
states, or any other subnational power." In other words, by
endorsing the use of creative judicial doctrines to favor business
and suppress local populism, conservatives are returning to their
Hamiltonian roots.
If the next administration grants the waiver that Bush denied and
allows California's emissions standards to go into effect--as both
Hillary Clinton and Barack Obama have promised to do (and as even
John McCain at one point endorsed)--big business conservatives will
turn once more to the Supreme Court to reverse their political
defeat. They will argue that California's authority to adopt more
liberal global-warming emissions rules under the Clean Air Act is
"preempted" by another federal law establishing national emission
standards. A federal judge in Vermont recently rejected this
adventurous argument, and the case against it would be even
stronger if it were opposed by a Democratic White House: As Scalia
has said repeatedly, the Supreme Court is supposed to give
deference to the views of the president and the EPA in environmental
cases.
It's true that the Court under Chief Justice Roberts has been
increasingly sympathetic to arguments that federal laws should
"preempt" state health and safety regulations. But, even if
anti-environmentalists convince the Supreme Court to overturn the
policies of President Obama, Clinton, or McCain, Congress would
likely reverse the decision with bipartisan majorities. Almost three
in four Americans say they would pay more taxes for local
governments to reduce the gases that cause global warming,
according to a recent Roper/Yale environmental survey.
Because state legislators and Congress are in a pro-environmental
mood, and because the Supreme Court is now committed to deferring
to Congress, says Douglas Kendall of the Community Rights Council,
"the next administration has all the tools it needs to control the
global-warming agenda, and to push Congress to implement a national
solution." In their opportunistic moves to use the courts and the
EPA to thwart politically popular environmental regulations,
conservatives may have unwittingly checkmated themselves.